Citation Nr: 1117633
Decision Date: 05/06/11 Archive Date: 05/17/11
DOCKET NO. 06-36 649 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for residuals of a left hip injury.
2. Entitlement to service connection for residuals of a left ankle injury.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky, Counsel
INTRODUCTION
The Veteran had active service from June 1969 to December 1970, including in Vietnam from January 1970 to December 1970.
These claims come before the Board of Veterans' Appeals (Board) on appeal of a November 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in Waco, Texas.
The Veteran testified in support of these claims during a video conference hearing held before the undersigned Veterans Law Judge in May 2009. This case was previously before the Board in August 2009, wherein it was remanded for additional development. The case was returned to the Board for appellate consideration.
FINDINGS OF FACT
1. There is no competent medical evidence of record relating the Veteran's left hip disability to his service in the military.
2. There is no competent medical evidence of record relating the Veteran's left ankle disability to his service in the military.
CONCLUSIONS OF LAW
1. A left hip disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.310 (2010).
2. A left ankle disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.310 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2010).
Notice
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.
VA issued a VCAA notice letter, dated in July 2005, from the agency of original jurisdiction (AOJ) to the appellant. This letter explained the evidence necessary to substantiate the Veteran's claim of entitlement to service connection, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. In addition, a March 2006 letter from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. However, the notice elements required by Dingess/Hartman were provided to the appellant after the initial adjudication and the appellant's claims were readjudicated thereafter. As such, the appellant has not been prejudiced and there was no defect with respect to timing of the VCAA notice.
The appellant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims.
Duty to Assist
With regard to the duty to assist, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment and examination. Additionally, the claims file contains the Veteran's own statements in support of his claims. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims.
The record shows that the Veteran has been examined by VA in connection with his claims. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issue on appeal.
Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained.
Legal Criteria
Service Connection - Generally
A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).
If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997).
Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. §3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is required to show this secondary cause-and-effect relationship; mere lay opinion will not suffice. See Lanthan v. Brown, 7 Vet. App. 359, 365 (1995).
The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made and the veteran's claim was filed prior to the effective date of the revised regulation.
Service Connection - Aggravation
A veteran will be presumed to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. §§ 1112, 1132; 38 C.F.R. § 3.304.
For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b).
Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991).
Analysis
Based on the evidence of record, the Board finds that there is a preponderance of evidence against the Veteran's claims of entitlement to service connection for left hip and left ankle disabilities, so these claims must be denied. 38 C.F.R. § 3.102.
The Board acknowledges that the Veteran testified at his May 2009 that he injured his left ankle in service, but points out that the Veteran's service treatment records do not show a left ankle injury other than a history of a fractured left ankle at age 12 upon entrance into service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). To the contrary, the Board notes that the Veteran did not report any complaints related to his left ankle during his service, and that the Veteran's military entrance and separation examination reports indicate that the Veteran's left ankle was normal. Likewise, the Board notes that the Veteran underwent an x-ray of the hips in July 1969, which showed possible positional external rotation of the left femur, but was otherwise normal; there were no related complaints, diagnoses, or treatment during service or at separation. See 38 C.F.R. § 3.303(a) (service connection requires that the facts "affirmatively [show] inception or aggravation . . . ."). See also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability).
Moreover, the Board finds that the Veteran's statements as to continuity of symptomatology at his May 2009 hearing are not credible, as he denied that he had a pre-service ankle injury at his December 2009 VA examination and did not report any related symptomatology to any of his treating providers in the interim years since his service. See Shaw v. Principi, 3 Vet. App. 365 (1992) (finding that a Veteran's delay in asserting a claim can constitute negative evidence which weighs against the claim). The Board notes that the first post-service documentation of treatment for his left ankle is not until October 1994; at that time, the Veteran reported an injury the previous Saturday. Likewise, his first reported treatment for his left hip was 2003; the Veteran reported at a February 2003 VA clinic visit that his left leg and hip pain started following his 1995 spinal cord surgery. See 38 C.F.R. § 3.303(b). See also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).
The Board also notes that none of the Veteran's treating providers have found that his current left ankle and left hip disabilities are related to the Veteran's military service, and that the Veteran did not report any continuity of symptomatology until he filed his claim in 2005. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of the claimant's testimony). Accordingly, the Board cannot conclude that a left ankle disability and a left hip disability are shown to have been aggravated or begun during service. See Savage, supra (requiring medical evidence of chronicity and continuity of symptomatology); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).
Furthermore, the December 2009 VA examination report concluded that the Veteran's left hip and left ankle disability were not likely to be causally related or aggravated by the Veteran's military service, including any alleged injury. According to the December 2009 VA examiner, the Veteran's left hip pain was actually buttock pain, related to the Veteran's nonservice-connected lumbar spine disability. The VA examiner also noted that the Veteran had a chronic left ankle sprain, but that he could not render an opinion as to whether it was related to the Veteran's service given the absence of any treatment for the Veteran's left ankle in service, as it would require speculation. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. See Bloom v. West, 12 Vet. App. 185, 187 (1999). See also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (the term "possibility" also implies that it "may not be possible" and it is too speculative to establish a nexus.).
Regarding the Veteran's contention that his left hip disability is secondary to his left ankle disability, the fact that there has been no demonstration, by competent clinical evidence of record, that the Veteran's left ankle disability is attributable to his military service, unfortunately also, in turn, means that he cannot link his left hip disability to his service via his left ankle disability. In this regard, the Board notes that the Veteran expressly contended that his left hip disability is secondary to his left ankle disability; however, his left ankle disability cannot be found to be related to his service. See 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. at 448. That is to say, the elimination of one relationship to service, as the supposed precipitant, necessarily also eliminates all associated residual conditions. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) ("In order for service connection for a particular disability to be granted, a claimant must establish he or she has that disability and that there is 'a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service.'" Citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).
In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board finds that the December 2009 VA examination must be given great probative weight because the opinion was based on a review of the entire record and full examination, and is consistent with the Veteran's service and post-service treatment records. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that most of the probative value of a medical opinion comes from its reasoning, and threshold considerations include whether the person opining is suitably qualified and sufficiently informed).
The Board observes that medical evidence generally is required to establish a medical diagnosis or to address questions of medical causation. Lay assertions of medical status do not constitute competent medical evidence for these purposes. Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997). Nevertheless, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Although the Veteran is competent to report an in-service injury and his current symptoms, the Veteran has been shown to be less than credible. Moreover, the Veteran has not shown that he has the expertise required to offer an opinion regarding any causal relationship between his left ankle and left hip disabilities and his active service. The Veteran's claims were limited to the May 2009 Board hearing and December 2009 VA examination, and thus are of less probative value than his previous more contemporaneous in-service histories and his previous statements made for treatment purposes. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). Thus, while the Veteran's contentions have been considered carefully, these contentions are outweighed by the medical evidence of record. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (holding that, in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole).
As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to service connection for residuals of a left hip injury is denied.
Entitlement to service connection for residuals of a left ankle injury is denied.
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V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs